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NAVY | DRB | 2004_Navy | ND04-00885
Original file (ND04-00885.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-ACAR, USN
Docket No. ND04-00885

Applicant’s Request
The application for discharge review was received on 20040506. The Applicant requested that his characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington, D.C. Metropolitan area. The Applicant listed National Military Justice Group, LLC as his representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20051024. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the characterization of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Issues submitted by Applicant’s counsel (National Military Justice Group) at the time of the Applicant’s personal appearance hearing supersede those submitted originally on Form DD-293.

 “Issue 1. Propriety – The Applicant punished at Captain’s Mast for failure to attend phys training even though the ship’s physician had ordered Applicant on light duty status.

Issue 2. Equitable – Applicant punished at Captain’s Mast for failure to attend physical training, even though he was not physically able to do so.

Issue 3. Equitable – Since discharge the Applicant has married, is a father, established work and attends college – 2 1/2 years total GPA 3.96. Cannot apply for ATC position with FAA because of characterization of discharge.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from The National Military Justice Group, LLC, dated 28 Jan 2005 with a copy of Applicant’s decisional document of 01 Feb 2001
Applicant’s DD Form 214 (Member 1)
Letter of A_ R. K_, dated 10 Oct 2005
Medical records from service record, 10 pages
Letter to Mr. C_ D. B_, dated 26 Jun 2003
Letter to Mr. C_ D. B_, dated 03 Sep 2003
Medical records from Veteran’s Administration, 88 pages
Virginia College at Birmingham transcript, dated 13 Oct 2005
Application and Memorandum submitted by The National Military Justice Group, 5 pages


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890724 - 900715  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900716               Date of Discharge: 920914

 Length of Service (years, months, days):

         Active: 02 01 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 62

 Highest Rate: ACAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)              Behavior: 3.2 (1)                 OTA : 2.8 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600, upgraded by NDRB on 20010201 to GENERAL (UNDER HONORABLE CONDITIONS).

 Chronological Listing of Significant Service Events :

 910505:  Charged with possessing alcoholic beverages in barracks, under age drinking and allowing unauthorized personnel in barracks.

911029:  Applicant waived right to counsel and accepted nonjudicial punishment.

911031:  NJP for violation of UCMJ, Article 92 (Failure to obey/regulation, 3 specifications):
(1) Possessing alcoholic beverages in barracks.
(2) Consuming alcoholic beverages while under the legal drinking age.
(3) Allowing unauthorized personnel (female) in barracks.
         Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. Forfeiture for 1 month, restriction and extra duty suspended for 6 months. No indication of appeal in the record.

911213:  Page 13 administrative remarks of counseling/warning regarding conduct, administrative discharge and character of service classification.

920507:  Advised of Physical Readiness Test failure and directed to participate in command physical conditioning program.

920629:  Applicant failed to obey a lawful order i.e. attend physical training.

920703:  Applicant failed to obey a lawful order i.e. attend physical training.

920706:  Applicant failed to obey a lawful order i.e. attend physical training.

920708:  Applicant failed to obey a lawful order i.e. attend physical training.

920710:  Applicant failed to obey a lawful order i.e. attend physical training.

920720:  Applicant failed to obey a lawful order i.e. attend physical training.  

920722:  Applicant failed to obey a lawful order i.e. attend physical training.
920805:  NJP for violation of UCMJ, Article 92 (Failure to obey, 7 specifications): Failing to attend physical training on 920629, 920703, 920706, 920708, 920710, 920720, and 920722.
         Award: Forfeiture of $250 per month for 2 months, restriction for 30 days. Forfeiture suspended for 6 months. No indication of appeal in the record.

920805:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920805:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for separation.

920818:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920901:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920914:  Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010201:  NDRB documentary record review Docket Number ND00-00934 conducted. Determination: Upgrade to general (under honorable conditions).
Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920914 under other than honorable conditions for misconduct due to the commission of a serious offense (A and B), upgraded by NDRB on 20010201 to general (under honorable conditions). After a thorough review of all available records, testimony, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge as modified by NDRB is proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

To be legally sufficient, a finding of misconduct due to the commission of a serious offense requires only a showing, by a preponderance of the evidence, that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred. A general (under honorable conditions) discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record. The Applicant’s service was marred by two nonjudicial punishments (NJP) for violations of UCMJ Article 92 (disobey an order, 10 specifications). Each violation of Article 92 is defined as the commission of a serious offense, the misconduct for which the Applicant was discharged. Separation under these conditions generally results in a service characterization of less than honorable. Relief is not warranted.

Issues 1 and 2: The Applicant alleges that his discharge was both improper and inequitable because the ship’s physician had placed him in a “light duty” status, therefore he was no longer required or able to attend physical training. The responsibility of presenting substantial and credible evidence to support this issue is that of the Applicant. However, he was unable to document his claim and provided only verbal testimony in support. The record contains no evidence of a long term or series of light duty chits to support the claim of impropriety. To the contrary the record does document the lawful order to attend physical training, the Applicant’s failure to comply and nonjudicial punishment. Furthermore, the order to attend physical training is not rendered unlawful by a physician’s issuance a light duty chit. Many service members, who are in a light duty status, attend physical training. During this time these individuals assist in the administration of physical training, stretch, and perform doctor prescribed exercises, etc. By the Applicant’s own testimony he did not attend physical training in an effort to force his release from the United States Navy. T he NDRB found no improprieties or inequities in the Applicant’s discharge . Relief denied.

Issue 3: The Applicant contends that his discharge was inequitable based upon the quality of his character demonstrated by his post service accomplishments. There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant provided testimony of his marriage and family involvement, as well as his post service job history. He provided a transcript documenting 84 hours of completed college coursework and 3.96 GPA. Furthermore, he verified his Phi Sigma Kappa membership, and discussed his previous service as a volunteer coach, and church membership. Although the Board commends the Applicant’s personal achievements and recognized his volunteer service to the community, a fter careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

Issue 3 (continued): The Applicant also contends that his discharge characterization of service is inequitable because he is unable to apply for an ATC position with his current discharge characterization. The Board has no authority to upgrade a discharge for the sole purpose of providing employment eligibility. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. For the edification of the Applicant, the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization based on the issue of obtaining Veterans' benefits such as enhancing employment, housing, medical or educational opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief. The Applicant’s issue is without merit. Relief denied.

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference “A”. During the initial review of the Applicant’s case by the NDRB in 2001 it appears the discharge package was complete. No abnormalities in the administrative process were identified at that time. For the edification of the Applicant, subsequent to the 2001 review the Applicant’s service record was transferred from microfiche to CD. Frequently during this process individual documents residing on microfiche are not of sufficient quality to transfer to CD in a legible state. This results in incomplete documentation where previously the record was complete. If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for failure to an obey order or regulation if adjudged at a Special or General Court-Martial.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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